If the legislature changes the law by removing a defence, and that change is not specified to apply to trials that have commenced and not been completed when the enactment takes effect, does the change apply to such trials?
Broadly, this was the issue in Stephens v The Queen [2022] HCA 31 (7 September 2022). It arose from a complicated interplay of charges and legislative change. To summarise, again broadly, there was uncertainty over when some of the offences charged were committed, and the time of their committal was relevant to whether an offence which otherwise might have been proved had then been repealed. This difficulty was belatedly addressed by the provision that had to be interpreted, s 80AF of the Crimes Act 1900 (NSW), which is set out at [19] of the judgment.
Here, the trial started (according to the relevant procedural meaning of the start of a trial applied by the 4-1 majority) on 29 November 2018, and s 80AF came into force two days later, on 1 December 2018. If s 80AF applied to this trial then a defence would be removed: [22].
Given that the legislation itself did not answer the question, this became an exercise in ascertaining the reasonable expectations of those who acted in reliance on the assumption that the known state of the law at the time that actions were done will determine their legal consequences: [33].
That is the underlying principle. It does not involve wrestling with difficult distinctions (substantive or procedural law: [31]-[32]) and difficult nomenclature (retrospective or retroactive legislation: [29]). Artificial distinctions must not be allowed to control the underlying principle: [32].
As to ascertaining the relevant reasonable expectations, the fundamental principles of criminal law, the accusatorial process, and the law in force at the relevant time will be informative [33], and the force of the presumption that the reasonable expectations will be determinative will depend upon the circumstances, as described at [34].
The Court was unanimous on the “reasonable expectations” test for determining whether retroactive effect was intended, and on the relevance of the nature of the rights that had been altered (at [49]), but Steward J dissented on whether in this case Mr Stephens did have reasonable expectations that were significantly disturbed by the application of s 80AF to his trial. Steward J took a different view on when the trial started ([55], compare majority at [8]), holding that s 80AF was in force before the trial started [56]. He examined preparatory materials to ascertain the legislative intent, concluding that s 80AF was intended to apply to trials that had commenced [61], [67], and Mr Stephens’s lawyers would have been well aware of the change in the law when it was pending and they were preparing his trial [68]. In short, Steward J described Mr Stephens’s position as seeking to have these convictions quashed merely because he was formally arraigned for the first time two days before s 80AF came into force.
